Schlussbericht über das Projekt: "Wettbewerbsrechtliche ... - vzbv

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Wettberbsrechtliche Kontrolle von grenzüberschreitenden 34 Marketingmaßnahmen vzbv 2001 1. Fax advertising Since the project launch, consumer complaints about unwanted fax advertising from foreign countries have risen dramatically. According to established court practice, unwanted fax advertising targeted on private persons without their assent is always anti-competitive in Germany. Prosecuting these anti-competitive violations is hard in practice as the original transmitter identification is always missing on the faxes with the company name plus address only rarely being indicated. Conclusions as to the sender of unwanted and illicit advertising can only be drawn from the order fax number indicated for purposes of ordering. As in mailed fax advertising the owner of the order fax number is frequently not identical with the sender of advertising, prosecution also poses problems when the owner of the order fax number is known. He generally does not disclose the name of his client to whom he provides this connection. There is no legal claim for obtaining client data. An increasing number of companies exploit this separation to systematically shirk their responsibility. The Federation of German Consumer Organizations therefore switched to claims against the owner of the order fax number from the aspect of disturber liability. In a leading case filed in November 2000 before the regional court of Munich, a corresponding forbearance claim is now to be enforced against those making a fax number available for the purpose of ordering goods. 2. Slimming advertising In the project period it was almost exclusively companies located abroad which conducted misleading slimming advertising by marketing their products with dazzling names such as "Coffee-Slim“, "Bio-slimming capsules“ or „Hollywoodstar capsules“ in full-page newspaper adverts. The fact that those responsible for this advertising disguise their identities also causes problems in these procedures: the indicated company names are mostly pure fancy names which are nowhere commercially registered. Addresses are regularly missing and post-office boxes are indicated at best. The only clue was mostly a foreign telephone number for ordering with a Call- Center answering which refused to provide details on the advertising company. Many cautions therefore come to nothing. The Federation of German Consumer Organizations therefore shifted to cautioning German publishing houses concerning their publisher's responsibility. Under this principle forbearance claims can be lodged against publishing houses if they have committed gross anti-competitive violations whose prerequisites are clearly and easily discernable. Six German publishing houses have issued pertinent forbearance declarations in this context.
Wettberbsrechtliche Kontrolle von grenzüberschreitenden 35 Marketingmaßnahmen vzbv 2001 3. Sweepstake advertising A quantitative rise in consumer complaints about sweepstake advertising by mailorder firms seated abroad was recorded during the project period. Quite apart from mass circulation, what was striking was the elaborate design of mailings (model savings books or cheques made out to the name of the winner, "official" winner certificates on high-gloss paper). In terms of competition law complaints were mostly made about deception as to chances of winnings as well as about the fact that sweepstake games were tied to the sale of goods. The Federation of German Consumer Organizations has known many company names for a long time, now they suddenly resurface under a different legal company name under foreign law (e.g..: "b.v.“ under Dutch law or "S.A.R.L.“ under French law), with the former German company being dissolved. Enforcing forbearance claims against these companies proved to be difficult as a domestic or foreign postal box number was mostly given as the sender or order address, with the company not even being resident in the country where the postal box is held. In all cases, those responsible could only be identified in cooperation with IMSN members. Yet, the inquiries, which in the case of one company were partly conducted in several countries, were often in vain as the companies were nowhere commercially registered. No caution could be issued in many cases despite existing anticompetitive violations. Consumer protection in terms of competition law in Germany has recently suffered a serious setback through a decision by the Federal Court of Justice (BGH) (dated 26 April 2001, 4 U 33/98). The Federation of German Consumer Organizations sued a German company for handling orders on the basis of fraudulent sweepstake advertising by a foreign company. The company resident in Strasbourg wrongly notified German consumers about winnings of DM 50,000 to be ensured by a goods order. The defending German company arranged the dispatch of goods and settled the other modalities involved in the contract implementation. Under the BGH ruling, the contract implementation per se is not fraudulent even if there is a connection between the anti-competitive sweepstake advertising and the goods sale and the German company is known for illicit advertising for its products.
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Schlussbericht über das Projekt: "Wettbewerbsrechtliche ... - vzbv

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